Thursday, April 30, 2009

Is Justice Scalia an "Irresponsible" Judge?

Justice Scalia tends to irritate many people when he visits law schools. Several years ago, a student at NYU Law School infamously (but cleverly) asked Justice Scalia whether he and his wife engaged in a particular sex act. Scalia predictably responded that this was a private matter. The student responded by noting the glaring disparity between Scalia's desire to keep his own sex life private and his rulings excluding sexual conduct from the right of privacy.

Now, a professor has gone after Scalia. It all began when Scalia, appearing at a conference on digital privacy, made comments dismissing privacy concerns related to web-based information as "silly." Scalia also downplayed complaints regarding Internet "tracking," arguing that "I don't find that particularly offensive . . . I don't find it a secret what I buy, unless it's shameful."

In response, Professor Joel Reidenberg, who teaches information privacy at Fordham Law School, required his students to compile information concerning Scalia. The 15-page report contains information regarding Scalia's "home address, the value of his home, his home phone number, the movies he likes, his food preferences, his wife's personal e-mail address, and 'photos of his lovely grandchildren.'"

Scalia, however, has responded in his normally caustic, yet witty, style:

I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.

It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any (boldface added).

Ouch.

Often, when I teach Scalia's opinions I find myself agreeing with his "social criticism" of the other justices. For example, he often accuses liberal justices of being driven by ideology or politics. Similarly, in his comments concerning Reidenberg, he accuses the professor of exercising "abominably poor judgment." I am always troubled, however, that Scalia never turns his blade inward to examine how his own jurisprudence responds to politics and personal ideology. In this moment, I cannot resist the opportunity to use Scalia's words to evaluate his own judging.

Scalia has made the unassailable point that what is "perfectly legal" can also represent "abominably poor judgment." Applying that logic to judicial opinions, one could argue that a Court ruling (or individual Justice's opinion) can contain completely sound logic and fall within the reasonable range of outcomes -- yet still demonstrate an abominable level of judicial irresponsibility. Although there are several moments where I would argue that Scalia acted irresponsibly, the following analysis details perhaps his worst moment of recklessness:

Race and the Death PenaltyMcCleskey v. Kemp involved an Equal Protection and Due Process challenge to the Georgia death penalty. A statistical study demonstrated a strong racial pattern in the imposition of capital punishment in Georgia. The racial pattern that most likely resulted in a death sentence involved a black defendant and a white victim. The Court rejected the petitioner's claim, arguing that he had not proven that he had suffered discrimination (even if others potentially had) or that Georgia maintained the death penalty "because of" the racial pattern that emerged.

Justice Scalia voted with the majority. Even though he joined the majority opinion which held that insufficient evidence of racism existed, Scalia nevertheless wrote a memorandum to the other justices prior to the ruling in which he concedes that juries and prosecutors make decisions based on race. Scalia, however, said that the law could not remedy this (which is almost a direct quote from Plessy v. Ferguson):

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.

I would rank this as one of the most egregious examples of judicial irresponsibility. For a Justice of the Supreme Court to concede the operation of jury or prosecutorial racial bias but then pretend that the court is incompetent to remedy the situation when a person's life hangs in the balance is horribly irresponsible.

Ironically, Justice Scalia does not believe that the Court is incompetent to remedy "racial discrimination" when he votes to invalidate affirmative action policies. Nevertheless, the Court cannot change the scenario when the government is, under his own admission, killing someone due in part to racial bias. Highly irresponsible.

7 comments:

You should take into considertionn, with McCleskey, the Court misinterpreted the information in front of them.

How numbers are tricking youby Arnold BarnettMIT Technology Review October, 1994The statistics that fill the media are often subtly misleading. Here's a guide to the most common types of errror.www(dot)geocities.com/CapitolHill/4834/barnett.htm

NOTE: I have removed most of this article and only retained the section on the death penalty - Dudley

------------------------------------------

Fundamental misunderstandings of statistical results can arise when two words or phrases are unwisely viewed as synonyms, or when an analyst applies a particular term inconsistently.

The Odds of Execution

A powerful example of the first problem arose in 1987, when the U.S. Supreme Court issued its controversial McClesky v. Kemp ruling concerning racial discrimination in the imposition of the death penalty. The Court was presented with an extensive study of Georgia death sentencing, the main finding of which was explained by the New York Times as follows: "Other things being as equal as statisticians can make them, someone who killed a white person in Georgia was four times as likely to receive a death sentence as someone who killed a black."

The Supreme Court understood the study the same way. Its majority opinion noted that "even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks."

But the Supreme Court, the New York Times, and countless other newspapers and commentators were laboring under a major misconception. In fact, the statistical study in McClesky v. Kemp never reached the "factor of four" conclusion so widely attributed to it. What the analyst did conclude was that the odds of a death sentence in a white-victim case were 4.3 times the odds in a black-victim case. The difference between "likelihood" and "odds" (defined as the likelihood that an event will happen divided by the likelihood that it will not) might seem like a semantic quibble, but it is of major importance in understanding the results.

The likelihood, or probability, of drawing a diamond from a deck of cards, for instance, is 1 in 4, or 0.25. The odds are, by definition, 0.25/0.75, or 0.33. Now consider the likelihood of drawing any red card (heart or diamond) from the deck. This probability is 0.5, which corresponds to an odds ratio of 0.5/0.5, or 1.0. In other words, a doubling of probability from 0.25 to 0.5 results in a tripling of the odds.

The death penalty analysis suffered from a similar, but much more serious, distortion. Consider an extremely aggravated homicide, such as the torture and killing of a kidnapped stranger by a prison escapee. Represent as PW the probability that a guilty defendant would be sentenced to death if the victim were white, and as PB the probability that the defendant would receive the death sentence if the victim were black. Under the "4.3 times as likely" interpretation of the study, the two values would be related by the equation:

If, in this extreme killing, the probability of a death sentence is very high, such that PW = 0.99 (that is, 99 percent), then it would follow that PB = 0.99/4.3 = 0.23. In other words, even the hideous murder of a black would be unlikely to evoke a death sentence. Such a disparity would rightly be considered extremely troubling.

But under the "4.3 times the odds" rule that reflects the study's actual findings, the discrepancy between PW and PB would be far less alarming. This yields the equation:

If PW = 0.99, the odds ratio in a white-victim case is 0.99/0.01; in other words, a death sentence is 99 times as likely as the alternative. But even after being cut by a factor of 4.3, the odds ratio in the case of a black victim would take the revised value of 99/4.3 = 23, meaning that the perpetrator would be 23 times as likely as not to be sentenced to death. That is:

Work out the algebra and you find that PB = 0.96. In other words, while a death sentence is almost inevitable when the murder victim is white, it is also so when the victim is black - a result that few readers of the "four times as likely" statistic would infer. While not all Georgia killings are so aggravated that PW = 0.99, the quoted study found that the heavy majority of capital verdicts came up in circumstances when PW, and thus PB, is very high.

None of this is to deny that there is some evidence of race-of-victim disparity in sentencing. The point is that the improper interchange of two apparently similar words greatly exaggerated the general understanding of the degree of disparity. Blame for the confusion should presumably be shared by the judges and the journalists who made the mistake and the researchers who did too little to prevent it.

(Despite its uncritical acceptance of an overstated racial disparity, the Supreme Court's McClesky v. Kemp decision upheld Georgia's death penalty. The court concluded that a defendant must show race prejudice in his or her own case to have the death sentence countermanded as discriminatory.)

A few things Dudley. First, Scalia's memo states that even if race impacts the juries' and prosecutors' decision, that's ineradicable. So, the statistical data you present has no bearing on Scalia's irresponsible decision. It is absolutely irresponsible for a judge to say that he cannot remedy racial discrimination -- particularly when he takes another approach in other contexts (such as affirmative action).

Second, the study isolates the type of cases with the greatest disparity. In the extremes --mitigating factors highly outweigh aggravating factors or vice versa, the likelihood of a capital sentence was roughly even. It was in the middle-range of cases where the disparities were the greatest. I believe the only aggravating factor in McClesky's case was the killing of a police officer.

Also, your own analysis suggests some racial disparity, but you seem to accept the court's requirement that McClesky prove racism in his own individual case. But the Court's analysis makes that impossible, by shielding juries and prosecutors from scrutiny. The only evidence a defendant would have in this situation is statistical data.

PS: The Baldus study starts with 230 nonracial variables. I believe one particular model used 39 variables. Again, if you look at FN5 of the opinion, it explains the range of cases where the disparity is the greatest.

Dear Mr. Hutchinson: Excellent! You are well on your way to becoming a limiited-government down-with-activist-judges citizen.

I can't argue MCCLESKEY with you because it's been so long since I read about it in CLOSED CHAMBERS by Edward Lazarus. Let me pick another Scalia opinion that has a certain notoriety: BUSH v. GORE. To be sure, the lawyers will promptly bawl that B v. G is per curiam, unsigned. But we know that Scalia joined the opinion, so went along with the nominal reasoning whatever his private misgivings. Here is an example of Scalia going ahead and doing what you chastised him for not doing, viz:

"For a Justice of the Supreme Court to concede the operation of jury or prosecutorial racial bias but then pretend that the court is incompetent to remedy the situation when a person's life hangs in the balance is horribly irresponsible."

Here Scalia & Co. charged ahead to correct not racial bias, but judicial incompetence on the part of the Florida Supreme Court. Do you like the result? I doubt it. I don't like it myself. To my mind the real validity of Geo. W's. election comes from the "recount" the Miami HERALD conducted in 2001, which showed that most (but not all) of the standards chosen give it to Geo. W. by a whisker. It isn't a happy result; the Consitution allows Presidents to be elected on a minority vote, but it doesn't sit well if you believe, as I do, in the will of the majority.

You've got a great deal more faith than I do in the judiciary's competence and suitability as agents of social change. To you, the result of ROE v. WADE is laudable (I'd like to know your opinion of the reasoning behind it sometime.) I disagree. Leave out the direct result of abortion. What has happened to the confirmation of federal judges since ROE? Merely the enshrinement of ROE as the sine qua non of judicial confirmation. All else is heaved to the side, while a never ending struggle with greater and greater doses of fraud continues. Don't believe me about the fraud? What about Clarence Thomas claiming he never had a serious discussion of ROE v. WADE before his Supreme Court confirmation? Or the pernicious tendency of Justices to regard their seats as their own personal property, the public interest be damned. See, e.g. Blackmun bawling that he was all that stood between ROE and doom. Or William O. Douglas clinging to his seat, voting the opposite of how Chief Justice Burger voted. Or JP Stevens, 89 blithely assuring us he can still contribute even while he makes his rep as the fax/Federal Express justice.

Such antics weaken democracy in this country. Congress is quite content with the situation as more and more hot potato issues can be tossed the Court's way. Let the life tenured gang handle it, while we get on with the serious business of raising money and cramming earmarks down the taxpayer's throat. Bah. Bring on limited government. Down with life tenure for judges. Cut it off at 70, and choke the tendency of "This seat is MY property!" among our krytocrats.

I'll conclude by saying that while I detest his rulings and thinking, David Souter gets points in my book for retiring at a decent age, and not obviously trying to pick his successor.

Bush v. Gore: The problem that a lot of constitutional law scholars have with the case has nothing to do with the equal protection violation (which actually got 7 votes, I think). Instead, it was Scalia's pseudo "irreparable" injury analysis that halted the recounts prior to the ruling and which deprived the Florida courts of articulating a uniform standard that complied with the equal protection mandate.

You often project beliefs upon me -- such as the assumption that I hate the conclusion by the newspapers which found that Bush would have ultimately won. I do not hate that reality. Instead, I disagree with the Court preventing it from happening in due course. That was a Florida issue, not a SCT matter.

Although I believe the abortion issue would simply take us into an abyss, I firmly believe that our nation's constitutional history protects "fundamental rights," including bodily integrity. The Due Process Clause refers to "liberty," and the Ninth Amendment acknowledges the existence of constitutional rights not listed in the document itself. Throughout history, the Court has held (based on substantial evidence) that liberty does not mean simply "freedom from bodily restraint."

I suppose you would allow lawmakers to do whatever they wanted to do and take that as an interpretation of liberty. The problem with this analysis: nothing in the constitution suggests that state legislatures or even Congress has free reign to interpret meaning of the document and to pass laws that are inconsistent with its meaning. Otherwise, what is the purpose of having a constitution -- or a COURT?

I don't get it. Scalia hasn't contradicted his principle here. He's simply applied it. His principle is that whether something is good policy is independent of whether it's the law, and his job as a judge is to answer the latter question. It's not his job as an unelected judge to determine whether something is a good policy. So if it's legal but abominable, he can support their right to do it as a judge and criticize their immoral activity as a private citizen, which is exactly what he did. He can do the same with very bad policy that's the law. He can uphold its constitutionality and do his job, and as a private citizen he can criticize it all he wants. The fact that it's a bad policy doesn't touch the legal analysis, and you seem to want him to declare something unconstitutional just because it's an extremely bad idea to do it. That's not how the judicial process should work, and it's certainly not how Scalia thinks it should work, so there's just no inconsistency or hypocrisy here. What you describe as turning his own analysis on himself is not an example of his analysis. It's a different analysis, one that favors judges setting policy preferences over the law.

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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